One of the first questions a matrimonial lawyer hears from a prospective client is, “What percentage am I entitled to?” (or conversely, “how much is my spouse going to get?”). Equitable distribution means that the answer is usually, “it depends.” Not all marital assets need be divided equally or alike. A growing number of cases, including a just-issued First Department decision, suggest that when business assets are at issue, the answer could be as low as 10 percent of the value of those assets.
The basic concept of equitable distribution is that, upon the divorce, marital assets—those acquired during the marriage—are going to be split between the parties. However, a non-titled spouse is not necessarily entitled to 50 percent of any or all the marital assets. Business assets are a particular case in point. In recent years, New York courts have acknowledged that business assets are in a class by themselves. Even where the non-titled spouse has made a moderate direct or indirect contribution to the business, he or she typically will not receive more than 30 percent of the value of the other spouse’s business assets and the percentage may be substantially less, depending upon the facts.
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